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Appellate Division.

[Feb.

valid here. Moore v. Hegeman, 92 N. Y. 521. Upon these facts the question as to what course would best preserve the future interest of these children was presented to the court below, and the court had to determine, in the exercise of its judicial discretion, as to which of the parents the custody of the children should be awarded, considering their future welfare. The rights of the parties to the action were subordinate to the welfare of the children. The misconduct of the defendant in contracting her second marriage depended entirely upon a legal question as to the jurisdiction of the court of the state of North Dakota to pronounce the decree of divorce. If that court had jurisdiction to grant that divorce, no one would say that the conduct of the defendant in contracting the second marriage was blameworthy, or would interfere in any way with her right to be awarded the custody of these children. Does the fact that she had made a mistake as to the legal effect of this decree, or as to the jurisdiction of the court of North Dakota to grant a divorce which would be recognized in this state, so affect her character as to justify this court in reversing the action of the court below in

CUSTODY OF CHILDREN AFTER DIVORCE OR SEPARATION,-continued.

In the case last cited, the chancellor said, "The object of the statute in giving the court power to direct which of the parties shall have the care and custody of the minor children, where the father has so conducted himself as to justify either an absolute or a limited severance of the marriage tie, was not to gratify the wishes of the parents. It was for the protection of the children, who by the misconduct of one parent had necessarily become half orphans.

"Besides, it would be a dangerous practice to allow parties to agree between themselves as to the custody of their children, in such a case, previous to a divorce. It would lead to collusion, in furnishing causes for divorce, if bargains of this kind could be made beforehand which the court, was bound absolutely to sanction and carry into effect."

The parties to an action for a divorce having stipulated for such disposition of their child as did not permit the child to be assigned to the company or custody of the mother, the court should not assign a residence to the child during the summer vacation at a hotel at which the mother was at that time a guest.

Beadleston v. Beadleston, 19 St. Rep. 714; 2 Supp. 814.

1900]

Osterhoudt v. Osterhoudt.

awarding the custody of these children to her? The children are warmly attached to her. She has devoted her life to their welfare; has provided for their support and education; and it certainly would be a cruel act, unless the welfare of the children imperatively demanded it, to deprive them of the companionship of an affectionate and loving mother, and assign them to the care of a father who has shown by his conduct that he had no very strong desire for their companionship, and where there is no evidence to show that he is able to provide a proper home for them. These facts would seem to justify the conclusion of court below that the happiness and welfare of these two daughters would be best protected and preserved by leaving them where they both desire to be,—with the person who, from their birth, has had the charge of their maintenance, education, and support, and who has faithfully and intelligently performed her

CUSTODY OF CHILDREN AFTER DIVORCE OR SEPARATION,-continued.

d. Modification.

Under § 1771 of the Code of Civil Procedure as it has stood since 1895 the way is open for the divorced spouse to apply for a modification of the decree of divorce in respect to the custody of the children.

Perry v. Perry, 17 Misc. 28; 39 Supp. 863; 25 Civ. Pro. 407.

In this case Pryor, J., said, "It is the settled law of this state that in determining the custody of infants between father and mother, their welfare, and not the supposed rights of the parents, is the controlling principle. Nor, in the competition, does the father start with any superior title; for, whatever the notion in former times and other jurisdictions, at this day and in this country, the claim of the mother to her offspring is, at least, of equal potency."

In this case a modification was granted permiting the divorced mother to visit her children, she having retrieved her character for virtue, notwithstanding the children had been taught to believe their mother dead.

In Waring v. Waring, 100 N. Y. 570; 3 N. E. 289, the husband had judgment in an action for a separation brought by him and was awarded the custody of the children. On appeal she asked that the judgment be modified so as to give her such custody. This was refused, the court saying, "In disposing of the custody of minor children the court consults mainly the welfare of the children. It is open her to satisfy the court, if she can upon any future application, that the welfare of the two younger children will be best promoted by placing them in her custody."

Appellate Division.

[Feb.

duty towards them. I think it may be said that the time has passed when courts of law are bound to recognize a right of property in children as belonging. to parents, or that the father has any inherent right superior to that of the mother to the custody of their children. In this state, by the domestic relations law (chapter 272, Laws 1896), the right of a mother to the guardianship, custody, and control of the children is plainly recognized as being equal to that of the father; and while it is quite true that the willful desertion of her husband by a married woman, without just cause, may, of itself, be sufficient to show that her character is such that it would not be safe to intrust to her the education and care of her children, the facts of this case would not justify such a finding. It is apparent from the testi

CUSTODY OF CHILDREN AFTER DIVORCE OR SEPARATION,-continued.

e. Remedies to enforce.

An attachment or habeas corpus is the remedy by which to obtain possession of a child which is kept from the custody of the parent to whom the decree awarded it.

Nicholls v. Nicholls, 3 Duer, 642.

In Monjo v. Monjo, 53 Hun, 145; 25 St. Rep. 150; 6 Supp. 232, the husband had procured a decree of divorce from the wife which awarded him the custody of the children. In endeavoring to obtain possession of one of the children he directed the arrest of the mother for her refusal to give up the child. He was held liable for a false arrest. The court said, "The defendant mistook his remedy. He could have taken the child by force, if the decree allowed, in a gentle manner, but he could not arrest the plaintiff because she refused to voluntarily give up the child."

f. Death of Custodian.

After the death of the mother to whom the custody of the children was awarded by the decree of divorce the father is entitled to their custody and the sums which he was required to pay for their support by the decree do not constitute a trust which survives the death of the mother.

Matter of Robinson, 17 Abb. Pr. 399n.

g. Appeal-Discretion.

The discretion of the court below in awarding the custody of children after a decree of divorce is not reviewable by the court of appeals.

Price v. Price, 55 N. Y. 656.

1900]

mony that force would be required to compel these children to leave their mother and reside with the father, and I do not think that the court would be justified, under the circumstances, in making and enforcing such a judgment, and in compelling these children to live with the father, when it would seem to be for their interest that the mother should continue to supply them with a mother's care, and where the father has shown no ability to properly provide them with a home and make provision for their material interests, or to supply them with the care which all young girls require. We have to determine this question upon the record which was before the court below and is now before us, and it does not appear that the defendant continued in her relation with Wilson after it was adjudged that such relation was unlawful. I do not think, therefore, that we would be justified in overruling the discretion of the judge who tried the case and had the parties before him.

1

The judgment appealed from should be affirmed, with costs.

Osterhoudt v. Osterhoudt.

RUMSEY and O'BRIEN, JJ., concur.

BARRETT, J. (dissenting). This is, I apprehend, the first time in the juridical history of any civilized country when the custody of the children of the marriage has been denied to the innocent plaintiff in a divorce suit and granted to the guilty defendant. It is so momentous a departure from universal precedent that the grounds upon which it proceeds should be critically examined. The fundamental fact found by the court was the defendant's adultery. It was open, continuous, and unrepentant. Upon that finding the court granted the plaintiff a divorce, and in the same decree awarded to the convicted defendant the custody of the children, and authorized her to bring them up in the home of the man with whom she committed the adultery. This is sought to be justified on the following grounds: That the adultery was but the legal consequence of the defendant's mistaken judgment as to her real status; that she intended to marry Wilson, and believed that she had a legal right to do so; that, with the exception of this single "mistake,"

Appellate Division.

[Feb.

her life has been blameless; that she has been a good and loving mother; that the children are devoted to her; that they do not care for their father; that they have become "very fond" of Wilson; that their father is a poor man, earning but a small income, while their mother has a comfortable home with Wilson, has property of her own, and is able to provide amply for them. Upon these grounds the respondent invokes the rule that the welfare of the children, which is the paramount consideration, should incline the court to treat their mother's offense as technical or venial; to sanction their enjoyment of the material advantages which her pecuniary condition and present relations afford, and not to deny them the comfort of maternal affection, This is nothing but a specious plea for the laxity of the marriage relation, and it is as unsound as it is vicious. The defendant made no "mistake" in the execution of her deliberate purpose to free herself from the husband she had ceased to love and to ally herself with another. In February, 1897, she left her husband for no apparent or disclosed cause. The plaintiff's brother Julius, then went to Bethlehem, where she was stopping, and begged her to return, and live with her husband; but she refused, assigning no reason. He visited her again, when she was living in Utica, and made another earnest effort in the same direction, still without success. Upon this occasion she told Julius plainly that what she wanted was a divorce, and Julius replied that she was not entitled to and could not get Her next step was to go to North Dakota, where she remained long enough to obtain one of the decrees of divorce for which that state has become notorious. This decree was not only void for want of jurisdiction, but it was inherently fraudulent. All the circumstances point to the fact that the defendant imposed upon the Dakota court by the sworn statement that she was, and had been for 90 days immediately preceding the commencement of her action, a resident of that state in good faith. She was married in this state, and the evidence tends to show that she has resided here ever since. She went to Dakota, plainly, not to reside there in good faith, but to obtain a divorce in bad faith. She went there to evade the laws of this state, where her contract

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